House of Lords - European Communities

Select Committee on European Communities 31st Report

THIRTY-FIRST REPORT

28 July 1998

By the Select Committee appointed to consider Community proposals, whether in draft or otherwise, to obtain all necessary information about them, and to make reports on those which, in the opinion of the Committee, raise important questions of policy or principle, and on other questions to which the Committee considers that the special attention of the House should be drawn.

ORDERED TO REPORT

INCORPORATING THE SCHENGEN ACQUIS INTO THE EUROPEAN UNION

7233/1/98 Schengen 14, Rev 1	Revised Draft Council Decision which would define the Schengen acquis for the purpose of its integration into the framework of the European Union.
6816/2/98 Schengen 11, Rev 2	Draft Council Decision determining the legal basis for the Schengen acquis following the Schengen acquis Working Group on 7 April 1998.

PART 1 INTRODUCTION

1. To many people, "Schengen" means that you don't need a passport to go from one country to another in mainland Europe. But needless to say, there is a great deal more to the Schengen agreements than that, and the legal arrangements which underpin Schengen have developed into as complex and intricate a web of rules as one might be able to contrive. The Treaty of Amsterdam set, as an EU objective, the establishment of the EU as an area of "freedom, security and justice". Incorporation of the Schengen acquis is a key element of carrying this objective into effect.

2. Schengen began when a group of European countries decided to shift the emphasis from internal border controls to external border controls, so as to create an area of free movement within a single secure external border. The original Schengen Agreement was signed in 1985. Since then, other countries have joined, and a host of other documents (the Schengen Convention, the Accession Protocols and Agreements, and the Executive Committee Declarations and Decisions) have been generated. This vast body of paper is collectively referred to as "the Schengen acquis". At Amsterdam in 1997 it was agreed that the acquis should be incorporated into the European Union. At the time the decision was made to incorporate the acquis, however, it was not clear which documents formed part of the acquis and which documents did not.

3. Thus, in order to incorporate the acquis into the EU, it is necessary first of all to define it, and then to identify the correct Treaty base for each extant provision.

4. In our 21st Report (Session 1997-98, HL Paper 87), Defining the Schengen Acquis, we published evidence from the Home Office describing the progress which had been made in the task of defining the acquis. Since then, the Working Group whose task it is to define the acquis has produced two draft Council Decisions. The draft Decisions are printed in Appendix 3 of this Report. The first Decision identifies the whole Schengen acquis; the second allocates a Treaty base to the parts of the acquis which need one.

5. The initial purpose of this enquiry was to examine the two draft Decisions in order to answer the following questions:

acquis

(iii) Has an appropriate legal base been identified in each case? Our enquiry into these questions raised a number of wider policy issues which are also explored in this Report.

6. The Home Office originally told the Committee that they expected to complete their analysis of the acquis, and to be able to suggest appropriate legal bases for the large bulk of the provisions, within our Presidency (i.e. by July 1998). This has not proved possible, because of the delay by the Schengen Presidency (Belguim) in producing the acquis, and the time taken by the Dutch during their Presidency to complete their own work. As a result, the Home Office have not been able to achieve as much as they had expected during the UK Presidency. Consequently they have not found it possible to deliver to the Committee the necessary materials in an organised shape, with their recommendations on the legal bases to be allocated. Inevitably, this has had an impact on our deliberations, but sufficient information has emerged in the course of evidence given to us by the Home Office to enable us to identify a number of important issues on which Member States will have to make decisions in due course. Some of these decisions are undoubtedly difficult. Accordingly, the present Report is an interim document, giving some information and comment on a subject which has received remarkably little public attention so far. We shall continue our work in the next session and hope that we will be able to offer a more definitive report in due course.

7. The allocation of a legal base is significant for several reasons. In the first place, the allocation of a base will determine whether a particular acquis provision will be incorporated within the First or Third Pillar. For example, the Schengen acquis includes provisions on data protection which might be given a legal base in the EC Treaty, bringing it within the Community sphere (First Pillar). Or, alternatively, it might be given a base in the Treaty on European Union which brings it into the Third, inter-governmental, Pillar. There are different procedures, institutional arrangements and legal arrangements under each Pillar. Generally the European Parliament and the Court of Justice have a far greater role in the First than in the Third Pillar. It is clearly important that issues such as data protection should be regulated in an appropriate way to achieve the best results.

8. Secondly, the United Kingdom and Ireland, unlike the other 13 Member States, have not signed up to Schengen. Under the Amsterdam Treaty, both obtained an opt-out from Schengen (although they have a right to opt in should they wish to do so, and subject to the agreement of the other Member States). As policy develops in fields such as border controls and police co-operation, it may well become more difficult to differentiate between proposals which arise out of Schengen and those which seek to implement other Treaty provisions. If the United Kingdom intends to retain its present policy of opting out except where it seeks agreement to opt in, then it will continue to be necessary to distinguish Schengen provisions from non-Schengen provisions. The UK therefore has a strong interest in ensuring that the allocation is done clearly and logically.

9. Thirdly, the development of the Schengen acquis and its allocation between the First and Third Pillars of the Treaty on European Union will do much to set the terms under which future rules in this broad area of shared policies will develop. The opt-out secured by the United Kingdom in the Amsterdam Treaty does not therefore mean that the process of allocation is of only indirect interest to the United Kingdom.

10. The UK and Irish opt out is only one of several complicating factors. Special arrangements apply also to Denmark, which is a member of Schengen but which objects to the incorporation of any Schengen provisions into the First Pillar. Matters are further complicated by the fact that there are two non-EU states (Norway and Iceland) which co-operate in the Schengen arrangements. Special provision will have to be made for them. Different decisions on Schengen will therefore be made by different combinations of States.

11. The draft Decisions which form the basis of this enquiry have been presented in a form which is extremely difficult for the reader to use. The substantive part of the second draft Decision, for example, simply takes the form of two columns of numbers, the first column being a list of acquis provisions from the 1990 Convention and the second column being a list of Treaty bases. No indication is given of the subject matter of the provisions or bases in question. We have therefore produced our own annotated version which matches the acquis provisions with the proposed legal bases in the EU Treaties. This is printed in Appendix 4. We have also produced our own summary of the titles of decisions and declarations adopted by the Schengen Executive Committee (the executive decision-making body for the Schengen area) which have been deposited in the Library of this House. A number of these will form part of the acquis which is to be incorporated. Our summary is printed in Appendix 6.

12. The impenetrability of the texts made it almost impossible for outside organisations to make sense of the draft Decisions quickly. We therefore took evidence only from the relevant Home Office officials (Mr Eland has been chairing the Working Group on allocation during the UK Presidency) and from the Minister, Joyce Quin MP. The following organisations and individuals helped the Committee to formulate the questions which we asked the Government: the Immigration Law Practitioners Association, JUSTICE, Mr Tony Bunyan and Professor David O'Keeffe. We are grateful to them for their help.

13. Part 2 of this Report explains in some detail the origins, background and content of the Schengen Agreements. Part 3 explains why and how the Agreements are now being incorporated into the European Union. Part 4 summarises and analyses the evidence we received. It is divided into two sections: Section A deals with the implications of the incorporation for the United Kingdom, and Section B tackles some more detailed, technical issues. The Committee's conclusions and recommendations are set out in bold throughout the text of Sections A and B of Part 4, and repeated in Part 5.